Constitution-Making Gone Wrong
Florida State University - College of Law
April 1, 2012
64 Alabama Law Review 923 (2013)
FSU College of Law, Public Law Research Paper No. 587
With the recent wave of regime change in the Middle East, the process of constitution-making must again become a central concern for those interested in comparative law and politics. The conception of constitutional politics associated with Jon Elster and Bruce Ackerman views constitution-making as a potentially higher form of lawmaking with different dynamics than ordinary politics and states that ideally, constitution-making should be designed so as to be a relatively deliberative process where the role of group and institutional interests is deemphasized. I argue that a focus on achieving deliberation and transformation through constitution-making is unrealistic in certain situations and that theorists should instead often focus on avoiding worst-case scenarios of authoritarian regimes or breakdowns of order. Constitution-making moments must not be idealized; they are often traumatic events. In these situations, the central challenge of constitution-making is not to achieve a higher form of lawmaking but rather to constrain unilateral exercises of power. I use two recent Latin American examples where the constitution-making process was problematic to illustrate the difficulty. If political forces in assemblies are left unconstrained or poorly constrained, they can reshape politics to create a quasi-authoritarian regime (as occurred in Venezuela), or their attempt to impose a constitution on a reticent minority may create a constitutional breakdown (as nearly occurred in Bolivia). Some of the normative recommendations of followers of the dominant model – for example, that constitution-making should be highly participatory and should be undertaken in a specialized constituent assembly – emerge as problematic under this reconceptualization because they may increase the likelihood of a worst-case outcome. Finally, I apply my theory in order to get some analytic leverage on the current constitution-making process in Egypt. Contrary to most observers, I argue that the military may be playing a pro-democratic role by helping to constrain otherwise dominant electoral groups.
Number of Pages in PDF File: 58
Keywords: constitution-making, constitutional theory, comparative constitutional law, Latin America, regime change, democratization
JEL Classification: K33Accepted Paper Series
Date posted: February 27, 2012 ; Last revised: July 23, 2013
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